Was the residency requirement the real reason Brian Schwartz resigned?

Yesterday, Brian Schwartz filed a lawsuit against the City for wrongful termination based upon the City of Toledo residency requirements.

In the filing posted on this site, you will see the different reasons and the history he lays out regarding why he was terminated even detailing a letter he received from the City in April of 2008 saying he was not compliant with the residency requirement.

Before and during Brian's time as the Mayor's spokesperson, he was a frequent poster

on a Marietta Ohio community Web site (http://www.mariettaohio.info) that hosts a public discussion forum. While Brian appears to have closed his account on that site, his postings still remain up.

The topic of his resignation was discussed by Brian himself. As a matter of fact, just 8 days after he made his resignation public Brian posted:

"After twice being hospitalized for chest pains, after suffering through an ulcer (a very dangerous condition for someone who's had stomach surgery) and literally fistfighting his boss, I'd say the time has come for me to move on.

The job with the port authority is iffy. I have a lot of support from elected officials of both parties. However, I made a few enemies in my time too. We'll see how it goes. Right now, I'm enjoying working from home. The mayor and I are not exactly on speaking terms, but he still wants me to write his speeches. No matter how angry we were at each other, he always said I was the best speechwriter he ever had."

Note at no time did he say it was because of the residency clause, which he is claiming now. In that post, it appears that post the main reason that Brian resigned was because of health reasons and a hostile work environment.

A few days before his post in all of the media appearances and press releases Brian consistently mentioned residency as the reason he resigned:

"The main issue is residency," Mr. Schwartz said yesterday. "Given the housing market as it stands, I can't afford to sell my house right now."

Publicly Brian was saying residency, but privately (well as private as you can be in a discussion forum :)) he was saying it was health, so one wonders if it was one, the other, or both.

I asked Scott Ciolek about what Brian said and Scott said that:

All of Mr. Schwartz's illnesses aside, he received a letter from the Administration clearly stating that his termination was imminent if he did not comply with the (then illegal) residency requirement. Objectively, when one receives a letter from an employer stating that termination is imminent there is no mistaking the employer's intentions.

Of course everyone is entitled to their day in court and to have all the evidence weighed before a decision is made, but if the residency is the main reason Brian resigned, then you would have thought it would have been mentioned both publicly and privately.

Regardless, this case is now in the system and as it grinds its way through the courts we will see through discovery and the other legal processes which side is right and if Brian's case has merit.

What do you think?

Full letter of Scott Ciolek's response:

Dear Chris,

Thank you for posting this story on your website. I think it's appropriate because of the public interest employment law issues raised in this lawsuit. These same employment issues effect a great number of people and the more they know about Ohio's law the better.

In response to your concern about Mr. Schwartz's health, I think a clear explanation of constructive termination, or constructive discharge as it is also known, is in order. Courts apply an objective test to determine when an employee was constructively discharged. Specifically, the question is whether the employer's actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign. In applying this test, courts seek to determine whether the cumulative effect of the employer's actions would make a reasonable person believe that termination was imminent.

All of Mr. Schwartz's illnesses aside, he received a letter from the Administration clearly stating that his termination was imminent if he did not comply with the (then illegal) residency requirement. Objectively, when one receives a letter from an employer stating that termination is imminent there is no mistaking the employer's intentions. Additionally, the working conditions that lead to Mr. Schwartz's illnesses may also serve to establish the "intolerable working conditions" standard when considering the cumulative effect. However, additional investigation and discovery would be required before we can make that assertion.

Since May 2006, municipal and political subdivision residency requirements have been prohibited in Ohio. Despite this, many other individuals in addition to Mr. Schwartz were either terminated, forced to relocate, or were granted waivers for accepting concessions in pay or benefits. I would encourage anyone who feels that they have suffered a loss because of the enforcement of the residency requirements after May of 2006, anywhere in Ohio, to contact an attorney to discuss the their rights and possible remedies.

Thank you,

Scott A. Ciolek PE

No votes yet

I think Brian ought to just write his memoirs of his time working for carty and use the $$ for his defense fund.

I'd buy that book for the laughs!

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